United States v. Curley, No. 09-3314-cr (2d Cir. April 25, 2011) (Jacobs, Wesley, Chin, CJJ) In this circuit, it is a fairly rare occurrence for a conviction to be vacated based on a Rule 404(b) error. But here, James Curley, convicted of interstate stalking offenses, will get a second bite at the apple. Background In … Read more
Here are four recent summary orders of interest. In United States v. Durham, No. 10-1046-cr (2d Cir. April 12, 2011), a supervised release violation case, the defendant claimed that his CJA lawyer was ineffective due to a conflict of interest. The circuit observed that in a VOSR the right to counsel is “statutory, not constitutional,” … Read more
United States v. Perez-Frias, No. 10-1401-cr (2d Cir. March 31, 2011) (Jacobs, Calabresi, Lohier, CJJ) (per curiam) Pedro Ruben Perez-Frias appealed his 42-month, below-Guideline illegal reenty sentence, arguing that it was substantively unreasonable. The circuit affirmed. His case presented a particularly unsympathetic set of facts. In 1995, Perez-Frias was convicted of a drug-related manslaughter. He … Read more
United States v. Quinones, No. 09-4361-cr (2d Cir. March 29, 2011) (Walker, Straub, Katzmann, CJJ) Antonio Quinones and his son, Herman, were convicted of conspiring to distribute controlled substances. Antonio was also convicted of a money laundering conspiracy. In this opinion, the Court tries to make sense of a confusing Supreme Court money laundering case … Read more
Here are three more summary orders of interest. United States v. Hernandez, No. 09-4930-cr (2d Cir. March 25, 2011), points out an interesting Guidelines question. Under § 3B1.1, the government bears the burden of proving that the defendant played an aggravating role. And one of the requirements for safety valve consideration is that the defendant … Read more
United States v. Potes-Castillo, No. 07-5518-cr (2d Cir. March 15, 2011) (Straub, Hall, CJJ, Underhill, DJ) The defendant here received a 188-month sentence after a jury convicted him of a drug conspiracy. At sentencing, it emerged that he had but one prior conviction: a 2004 New York State conviction for driving with ability impaired by … Read more
United States v. Desnoyers, No. 10-0447-cr (2d Cir. March 14, 2011) (Jacobs, Wesley, Chin, CJJ) Mark Desnoyers was convicted of, inter alia, one count of conspiring to both violate the Clean Air Act (“CAA”) and to commit mail fraud, in connection with his asbestos abatement work. The district court, finding both factual and legal problems … Read more
United States v. Buissereth, No. 09-5358-cr (2d Cir. March 15, 2011) (Cabranes, Chin, CJJ, Crotty, DJ) This decision found great fault with a sentencing that “left much to be desired.” The district court “failed to (1) rule on the numerous filed objections to the PSR; (2) rule on the requests for downward departures and a … Read more
Morales v. United States, No. 04-0585-pr (2d Cir. March 11, 2011) (Pooler, Hall, Livingston, CJJ) Although decisions in habeas cases are generally beyond the scope of this blog, this one contains an discussion of an interesting sentencing issue relating to convictions on multi-object conspiracies where there is no special verdict. Morales was a “Director of … Read more
United States v. Treacy, No. 09-3939-cr (2d Cir. March 9, 2011) (McLaughlin, Hall, CJJ, Restani, JCIT) James J. Treacy, former COO and President of the parent company of Monster.com, was convicted of securities fraud and related offenses based on a scheme in which he backdated stock options. On appeal, the circuit held that the district … Read more